For Purposes of Interagency Review Only

Page 1 of 6 SSM Petition Response : EPA Responses to OMB Comments Received 1/30/13 on 11/26/12 Draft Proposal

OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response

In

General Several edits have been made at various points in the document at EPA’s initiative, mostly to correct

small errors. These are self

explanatory but EPA staff can address any questions on these.

18 16 A1. Copy of Petition in docket? Yes, the petition has been loaded into

the docket.

19 18 A2. Settlement Agreement and focus of litigation? The settlement agreement is in the docket, and edits have been made at this place in the notice to provide

more historical information on the litig ation leading to the settlement.

20 18 A3. Providing guidance to states re enforcement discretion and

affirmative defense? Requires Discussion

20 19 A4. Commenter recommends rewording. Suggested edit has been made.

22 21 A5. Say more about "impermissibly" interfering with enforcement? An edit has been made to address

this comment.

25

- 26 24 A6. Practical implications? Requires discussion. Practical consequences to states are addressed in the second paragraph

that follows Table 1.

39 36 Suggested edits Requires discussion.For Purposes of Interagency Review Only

Page 2 of 6 OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response

48 45 Suggested edits Requires discussion.

58 54 A7. Does EPA's determination consider actual cause? Requires discussion. This question is addressed in the legal background memo, which cites

to the Luminant decision.

95 88 A8. Might change interpretation based on comment? Yes. An edit has been made to make

this clearer.

95 88 A8 (more). Articulate legal authority in preamble vs. as separate

memo? Requires discussion.

102 95 -- Commenter recommends a recurring edit, to change "inconsistent

with the CAA and the EPA's SSM Policy" to "inconsistent with the

CAA as interpreted in the EPA's SSM Policy." We have not made this change in passages that summarize statements in the Petition, because the original wording is accurate. We have made this change in passages that state EPA’s assessment of the petition and our proposed action.

104 96 A9. Implications of this rule, once finalized, on, e.g., our recent Regional Haze "findings of failure to s ubmit"? We do not see any implications for this action on our Regional Haze findings of failure to submit or on the

SIP and FIP actions that have been taken since those findings.

• Impermissible SSM provisions in theory could prevent EPA approval of a regio nal haze SIP, but they

would not have had no role in the findings of failure to submit regional haze SIPs,For Purposes of Interagency Review Only

Page 3 of 6 OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response because those findings were based only on failure to submit complete SIPs.

• In fact, we have not disapproved any RH SIPs due to impermissible SSM provisions. Regional Offices

worked with their states to

avoid submission of such provisions. (In the case of South Dakota, we worked

with the state to make an approvable interpretation of a SIP provision.)

• The FIPs we have promulgated do not include any i mpermissible SSM provisions. Many are based

on 30

- day averaging periods

for the emissions limits

and/or have emission limits set with explicit consideration of startup and shutdown, to practically allow for higher emissions during startup and

shutdown in a manner consistent with the CAA.For Purposes of Interagency Review Only

Page 4 of 6 OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response Some (if not all) include provisions for affirmative

defense consistent with this

notice. No comment requesting an affirmative defense provision was rejected.

• Because SSM provisions were not the reason that any regional haz e FIPs were needed, if states fix their general SSM provisions that would not by itself allow EPA to approve the RH SIPs that were not fully approved and

withdraw the RH FIPs.

113 105

-- Insert "certain limited" circumstances? Suggested edit has been made.

115 106

-- Commenter recommends rewording. Suggested edit has been made.

123 114 A10. Engaged with states? Requires discussion.

The notice makes clear that we

welcome state comments in cases where we have had to interpret a SIP provision, which gi ves states an opportunity to document an interpretation different than the oneFor Purposes of Interagency Review Only

Page 5 of 6 OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response on which we are basing our proposed

action.

124 115 A11. What does "through many iterations" mean

— that we've always had same position on automatic exemptions? A clarifying edit has been made.

124

- 125 115

- 116 A12. Clarify meaning of "take action to rectify"? A clarifying edit has been made.

125 116 A13. Say more about how inappropriate director's discretion provisions allow case

- by

- case exemptions? A clarifying edit has been made.

126 117 A14. Are there provisions for director's discretion or enforcement

discretion that don't foreclose on EPA's enforcement? Requires discussion. This action does not directly affect other states, although the final

notice’s restatement of the SSM Policy will guide future EPA actions

for those states.

126 117 A15. Explain "understood from the outset" with respect to enforcement discretion provisions' being state

- only? A clarifying edit has been made.

128 119

-- Insert "identified by the petitioners." The edit has been made.

128 119 A16. Say more about the "certain circumstances" under which we would find affirmative defense provisions to be appropriate? A footnote has been added to provide and explanation of “certain

circumstances”.

129 120 A17. How does one evaluate potential to exceed? Requires discussion.

130 121

-- Insert "in an individual SIP." The edit has been made.

130 121 A18. How does one evaluate adequacy of criteria for an affirmative defense provision? This is addressed elsewhere in the notice, particularly in section VII.B.

A sentence has been added to makeFor Purposes of Interagency Review Only

Page 6 of 6 OMB

Blackline (1/30/13)

p age no. 2/5/2013

Blackline

page no. Comment, in brief EPA Response

this clear.

130 121 A19. General rationale for policy change (expressed preference) for

affirmative defense over enforcement discretion? EPA does not intend to be expressing a preference for affirmative defense

over enforcement discretion. Can the commenter point to passages that

seem to do that?

130 121 A20. Commenters expressed that it would be helpful to understand the specific regulatory implications for individual states where EPA has proposed to grant the petition. Requires discussion. Practical consequences to states are addressed in the second paragraph

that follows Table 1.

122

- 308 -- Commenter recommends a recurring edit, to change "inconsistent

with the CAA and the EPA's SSM Policy" to "inconsistent with the

CAA as interpreted in the EPA's SSM Policy." We have not made this change in passages that summarize statements in the Petition, because the original wording is accurate. We have made this change in passages that state EPA’s assessment of the petition and our proposed action.

334 313 A21. UMRA section. Commenters expressed concern that rule may impose unfunded mandates on states. States will have to impose new requirements on facilities? Requires discussion.

335 314 A22. Federalism section. Has EPA analyzed the "not substantial" effects on states of having to revise their SIPs? Requires discussion.